Conference on Holocaust-era Art Provenance Research

Jim Leach,
Chairman, National Endowment for the Humanities

I recognize that the subject of today’s conference is highly sensitive. Understandably, many in the museum world are concerned that ownership of works in museums may be challenged and this is naturally an uncomfortable thought for directors, curators, and the public they serve. On the other hand, there are times and circumstances that morality trumps other interests. This is one.

I am neither an expert on provenance research nor up-to-date on the latest agreements related to the displacement of art due to the Holocaust and World War II itself. But I thought it might be helpful to summarize the Congressional involvement in retroactive justice issues during the last decade of the 20th Century that provided impetus to the provenance research issues that are the subject of this conference.

As chairman of the House Banking and Financial Services Committee, I had been aware for years that Swiss and other European banks had played a critical role as financial intermediaries for the German government during World War II. Swiss banks in particular had also become fiduciaries during the 1930s for the assets of Jews from all over Europe. Ironically, the extensive bank secrecy laws that seemed ideally suited to protect individuals from coercive governmental takings before the war facilitated the confiscation of accounts after the war ended. I had generally assumed that issues related to this circumstance had largely been resolved and then I read several articles indicating that evidence was emerging that Swiss banks had not been completely transparent in prior reviews of the subject. Hence I determined to hold unusual hearings for a legislative body — a review of history and the consequences of historical events. History, it soon became clear, was in this, as in many circumstances, more controversial than current events.

As everyone at this conference understands, the Holocaust stands as the greatest social sin in the history of mankind. The Nuremberg trials may have brought symbolic justice to a few. But because the crimes were so heinous and took place on such a vast scale, their brutality had obscured for half a century the degree to which the Holocaust was not just murder of genocidal dimensions but also the largest theft in history — grand larceny on a continental scale.

In retrospect, one wonders why the issue was not fully addressed at the end of World War II and why it re-emerged half a century later. A number of factors came into play. Several stand out:

At the end of World War II there was widespread denial or inability to comprehend and come to grips with the breadth of human accountability for crimes of such incomprehensible scope;

So many of the victims and witnesses to these crimes were killed; few were present to lodge a claim;

There was an assessment in the capitals of Europe and in Washington, D.C. that the victors had been too punitive to Germany at the end of World War I and that post-war retribution may have contributed to the conditions and perceived grievances that precipitated the rise of Hitler and the Second World War; hence, reparations agreed to at the end of World War II took into consideration the counter-productive effects of the compensation the allies insisted upon at the end of the prior war, a struggle that had come in its aftermath to be falsely trumpeted as the war to end all war;

There was concern for Soviet expansionism and a desire for Germany or at least the newly formed West Germany to serve as a bulwark against potential Soviet aggression; realistic recognition was given to the devastation the war had wreaked on the country and its post-war split into two parts; indeed, given the fungible nature of money, the U.S. with the Marshall Plan, in effect came to compensate West Germany for a hefty part of its war settlement obligations.

Renewed consideration of asset theft issues was made credible in the last decade of the 20th Century by a convergence of three historic events: the end of the Cold War, the dissolution of the Warsaw Pact, and the reunification of Germany;

A new wave of historical research based on hitherto inaccessible documents pointed to complicity of private citizens and institutions in Nazi crimes; likewise, art historians had come to record more fully the magnitude of the displacement of art during World War II, concluding that the war represented the greatest displacement of artworks in history;

As in the case of all movements, leadership makes a difference, sometimes greatly, sometimes less so; in this case, one American stands out, that being a remarkable under-Secretary of State and later Treasury, Stuart Eizenstat, who negotiated significant new compensatory arrangements with key governments in Europe.

A lens from abroad might suggest that some of the luster has been removed from American political institutions over the last decade. But for much of our history the House of Representatives has not only stood as the American people’s house but as a beacon for other societies. Hence the four years of hearings of the House Banking Committee on retroactive justice garnered far more attention abroad than they did at home and a number of European parliaments followed up with similar inquiries.

What characterized our hearings was the depth and quality of the review. We heard from scores of witnesses representing more than a dozen countries. Included were victims, historians, philosophers, government leaders, and those associated with commissions impelled by the concerns we and others raised. Of particular importance were three commissions: one led by former Federal Reserve Chairman Paul Volcker to review claims against world-wide banking interests; one by a Swiss economic historian, Jean-Francois Bergier, to review broad Swiss accountability; and the third by former Secretary of State Larry Eagleberger to review the magnitude of the refusals in the insurance industry to honor valid Holocaust related claims.

Taken together, the hearings showed how the economic consequences of Nazi rule were felt long after Hitler was defeated. Survivors were often kept impoverished. Surviving companies, on the other hand, whether complicit in or unwitting beneficiaries of Holocaust theft, came to enjoy unfair economic advantages derived from stolen assets, refusal to honor fiduciary responsibilities, and, sometimes, inhumane war-time treatment of forced laborers — Slavs and Gypsies as well as Jews.

At the outset, the Banking Committee began looking into the role of Swiss banks, including the central bank, in the Nazi war effort. Soon the investigation, propelled by self-generated moral imperatives, expanded to include the role of other neutral countries, the Axis and occupied countries, our allies, and the U.S. itself. In the wake of the hearings, I introduced legislation that became public law authorizing assistance for victims of the Holocaust and creating a special commission to examine the treatment of Holocaust victims’ assets in our own country.

One of the contrasts between common law countries like Britain and the United States and Napoleonic code countries like most of Western Europe is the different accountability of parties in theft transactions. In America if an individual can prove someone is wearing a watch stolen from him, he can insist under the law that it be returned. The only recourse the wearer has is to demand compensation from the party from whom he purchased it, who may or not have been the thief. In Napoleonic code countries, on the other hand, anything bought in a good faith transaction belongs to the buyer, and in this kind of situation the original owner’s only recourse is for him to seek compensation from the person who sold the current owner the watch. What this all means for the art world is that Holocaust art owned by Continental museums or private parties may in many circumstances remain legally, but perhaps not morally, their possession. Hence, it is impressive that many European museums have volunteered to set aside rights they have under the Napoleonic code and instead follow common law legal standards in this instance.

It had been the goal of the Banking Committee and the Executive Branch to conclude the intense review of the Holocaust asset issue by the end of the 20th Century. While this arbitrary deadline was largely but not entirely met, the timing objective proved helpful in reaching agreements in Europe because mortality was taking its toll on those who survived the Holocaust and many countries wanted to begin the new millennium with a new slate and new values. Oddly, the issue that affects the least number of Holocaust era families — that related to art — is the one that continues to be central in many discussions. Part of the reason relates, of course, to the value that now applies to some artworks; part to the centrality of culture in all our lives; part to the ghoulish, systematic audacity reflected in the Nazi accumulation of artworks.

I use the word “ghoulish” because of the difficult-to-pin-down anecdotes about Jewish parents bartering assets including paintings with those in authority to have their families assigned to camps considered less lethal than others. Whether valid or not, these stories indicate that peoples in neighboring countries knew more about the distinctions and therefore level of barbarity of Nazi policies than our own troops did at the time. This may be the only war in history where soldiers in combat considered the policies of an enemy to be less evil than history has shown them to be.

After a hesitant start marked by hostility on the part of some, and certain backtracking on commitments, the government and people of Switzerland, where our inquiry began, submitted themselves to a profoundly controversial process of national introspection which resulted in the establishment of a humanitarian compensation fund as well as individual bank agreements to honor fully accounts once held by individuals sent to concentration camps. Likewise, key insurance companies have accepted the obligation to process claims for accounts that were allowed to be dormant since the war. In addition, international conferences on wartime gold transfers and art displacement have taken place, one of which I co-chaired over a decade ago at the State Department. Our hearings, the work of Stuart Eizenstat, and the various national and international commissions established have helped bring a more forthcoming and scrupulous stance on Holocaust era assets, including art, that changed hands during the Nazi era.

The focus of historical inquiry is never wide enough to include all or unveil everything but the limited historical review that commenced a half century after the war’s end has moved significant institutions to acknowledge moral responsibility for economic crimes of grave magnitude. We cannot, however, delude ourselves. With crimes so savage, with redress so long overdue, with so many records destroyed, with so many stories of inhumanity that will never be told, justice can neither be achieved nor conceived. Civilization cannot countenance an eye for an eye when genocide is at issue. Nor can hatred’s bounty be fully disgorged.

The Nuremberg trials may have brought symbolic justice to a few and recent Holocaust asset reviews provided some comfort to a few survivors. But it is impossible to provide adequate compensation for the value of lost lives, lost savings, the confiscated homes and stores, the stolen art and necessities of life — clothes, blankets, pots and pans — of families from Germany, Holland, France, and Poland, to North Africa and the remote villages of Lithuania, Byelorussia and Ukraine.

But renewed attention to accountability, particularly on this issue at this stage, six and a half decades after the conclusion of the most traumatic war in history, is not principally about attempting to exact greater compensation for the decreasing number of Holocaust survivors. It is about principle and precedent. The reason there can be no statute of limitation on crimes of genocidal magnitude is that crimes which occur without subsequent accountability are crimes that may too easily be replicated. The restitution efforts still underway are the only means at hand to bring a semblance of meaning to the Reverend Martin Luther King Jr.’s belief that “the arc of the moral universe is long but it bends towards Justice.”

Historical inquiries into the nature of evil and how to behave in the shadow of evil are not normal in any society. Yet, as a Princeton philosopher told the committee: “the map with the help of which we try to orient ourselves as human beings trying to live good and decent lives is a map with Auschwitz on it.”

I would like to end with a quote, this one of presumptuous dimensions because it was my concluding comment at a seminar on the larceny associated with the Holocaust in Tel Aviv, Israel, eleven years ago. Here is what I said:

“Mass murder makes concern for mass theft insignificant except for the motivational linkage. Because it is clear that avarice was one of the motivating factors of the hatred in man that precipitated the Holocaust, it is imperative that we continue to focus the lens of moral accountability beyond the SS troops, mass graves, gas chambers, and furnaces that previously dominated historical scrutiny into the gray, shadowy corners of the Holocaust where greed reigned: the factories, warehouses, board rooms, bank lobbies, salons, museums, and professional offices of Axis nations, neutral countries, occupied land, and even the allied powers that eventually prevailed over the Wehrmacht. And what have we learned? In the stories of the victims and their persecutors, we have unearthed an axiom about the nature of evil: the genesis of evil may begin with perpetrators of violence and injustice, but complicity too frequently lies beyond the perpetrator in those who cloak themselves in the legitimacy of private business and genteel society while manipulating manifestly oppressive circumstances in furtherance of self-interest, oblivious to hate-driven crimes, even genocide. This lesson remains profoundly relevant for the ages.”

*Comments summarized in delivery.

*A former 15-term Congressman, Leach is Chairman of the National Endowment for the Humanities.